NOOR MUHAMMAD Versus MEMBER (REVENUE), BOARD OF REVENUE, PUNJAB, LAHORE

In this writ petition the petitioner calls in question the order dated 7‑5‑1986 passed by the learned, Member, Board of Revenue in the matter of appointment of Lambardar.

2. The facts of the case are that one Wajid Ali Khan deceased was permanent Lambardar of Chak No.119/13‑AL Tehsil Chichawatni District Sahiwal. He died on 19‑11‑1983 and as such the said post fell vacant. By order dated 20‑12‑1983 of A . C . the said post was advertised and applications were invited from persons who desired to be appointed as Lambardar. Several persons submitted applications including the present petitioner and respondents Nos.4, 5 and 6. During the course of proceedings 8 persons withdrew in favour of respondent No.4 whereas 6 persons withdrew in favour of the petitioner leaving 5 persons in the contest. By order dated 19‑8‑1984 AC/Collector, Chichawatni appointed respondent No.4 Subedear Asghar Ali as Lambardar of this village. The petitioner agitated against this order by filing appeal before the learned Commissioner Multan Division. None else assailed the said order. The Commissioner Multan by his order dated 3‑11‑1985 accepted the appeal of the petitioner and appointed him as Lambardar of the village following the rule of primogeniture as contained in Rule 19 (2) of the West Pakistan Land Revenue Rules, 1968. Respondent No.4 feeling aggrieved filed revision petition before the learned Member, Board of Revenue which was accepted vide order dated 12‑3‑1986 which was challenged by the petitioner in W.P. No.344 of 1986 in which a ground was also taken that the learned Member, Board of Revenue did not deal with the ple4 of the petitioner that respondent No.4 was an old man of about 70 years and was also almost blind and, therefore, was not a fit person to be appointed as Lambacdar. According to the learned counsel for the petitioner, he was advised by the learned Judge to avail of remedy of review in which the said grounds may be taken before invoking writ jurisdiction of this Court. Accordingly a civil miscellaneous application was moved by the petitioner stating that the petitioner wanted to move for review before the learned Member, Board of Revenue and if he did not succeed in obtaining the review he would file a fresh petition. A prayer was made, to allow him to withdraw the said writ petition. This application was allowed by order dated 28‑4‑1986 passed in that writ petition which is reproduced in extensto:‑

Petitioner has moved this application praying that he be allowed to withdraw the writ petition. It is stated by him that he wants to move for review before the learned Member, Board of Revenue, and that if he does not succeed in obtaining the review, he shall file a fresh petition. Application is allowed with the result that the writ petition stands dismissed as withdrawn. It shall of course, be open to the petitioner to approach this Court if he does not get the requisite relief from the learned Member, Board of Revenue. This C . M. as also the writ petition stand disposed of."

3. Learned counsel for the petitioner in order to complete the narration of facts submitted that he moved the review petition before the learned Member, Board of Revenue who dismissed the same by order dated 7‑5‑1986 and again it is urged that the learned Member Board of Revenue did not advert to the said ground regarding old age of respondent though the same was raised in the review application and duly argued before him. In the meantime since the petitioner was apprehending cancellation of grant of land made to his deceased father as Lambardar, therefore, in order to protect his possession over the said land, it is maintained that he was constrained to file a civil suit in order to obtain interim relief. The said civil suit was withdrawn by the petitioner after filing the present writ petition. Learned counsel for the petitioner urged that rule of primogeniture as contained in rule 1 (2) of West Pakistan Land Revenue Rules, 1968 is mandatory in nature and since the estate in question is admittedly not chiefly or altogether owned by Government, therefore, according to said rule nobody else except the petitioner could be appointed as Lambardar and as such the order passed by the learned Member, Board of Revenue being violative of the said rule is without lawful authority. He also urged that even if said Rule 19(2) is held to be directory in nature even then the same could not be ignored and departure could not have been made from the same except on very strong ground and compelling circumstance justifying a departure from the said rule and circumstances should be such as would make application of the said rule impossible and incapable of being complied with. No such circumstances was pleaded or even held to be existing in this case. He further argued that the Board of Revenue itself through long standing practice adhered to the said. rule of primogeniture and never made departure from the same except in the case in hand and this long practice had acquired the status of mandatory rule of law. He referred to the following judgments in support of his arguments:‑

(1) Mian Muhammad Gulsher v. The State P L D 1960 (W.P.) Rev. 49.

(2) Khushi Muhammad v.Nazar Khan P L D 1960 (W.P.) Rev. 54.

(3) Kundar Khan v. Kamadar Khan P L D 1960 (W.P.) Rev. 57.

(4) P L D 1957 (W.P.) Rev. 103.

(5) Wazir Ahmad v. Mukhtar Ahmad (P L D 1964 (W.P.) Rev. 17.

(6) Tauqir Ali v. Government of Pakistan P L D 1956 Rev. (W.P.) 64.

(7) Suleman v. Ali Muhammad P L D 1963 (W.P.) Rev. 17

(8) Ahmad Din v. M.B.R. etc. 1983 C L C 1385.

4. Learned counsel for the petitioner also argued that the only reason for not appointing the petitioner as Lambardar as given by the learned Member, Board of Revenue was that he was minor and could not look after the job properly. He has argued that this was not at all a valid ground to ignore the petitioner or to refuse to appoint him as lambardar as rule 26 of the said West Pakistan Land Revenue Rules, 1968 has taken care of this eventuality in which it has been provided that in case of lambardar who is a minor, a Sarbarah lambardar could be appoint and from this rule it is also clear that law does not treat minority itself as disqualification if the minor is claiming the appointment on the basis of application of rule of primogeniture as contained in rule 19 (2) of the said Rules. It has been further argued that the order of the learned Commissioner who has passed the order according to the provisions contained in rule 19 (2) while appointing the petitioner as Lambardar was unexceptionable and, therefore, there was no illegality in his order. It was further contended that the learned Member, Board of Revenue could not interfere in the said order unless it was held that it was violative of any law of rule and not merely on his whim.

5. As against this learned counsel‑for respondent No.4 who is the only contesting respondent argued that the petitioner having not disclosed in the writ petition that he had filed a suit which was pending, as such the writ petition should be dismissed as he has not come with clean hands and deliberately tried to conceal the said fact. He further argued that the previous writ petition was withdrawn by the petitioner on the ground that the petitioner wanted to move a review application giving impression that the review application was yet to be moved, while on the other hand he had already moved the review application which was pending. Therefore, he was also responsible for mistating the fact which disentitles him from the grant of any relief in writ jurisdiction which is discretionary.

6. On merits of the case learned counsel for respondent No.4 has merely argued that no person has a vested right to the appointment as Lambardar and, therefore, writ petition against an order passed by the Revenue Authorities regarding appointment of a Lambardar could not be maintained. Reliance has been placed on the following reported judgments:‑

(1) Allah Ditta v. Mian Nasir Ahmad (P L D 1973 Lah. 359).

(2) Khadi Khan v. Mst. Resham Jan (1983 C L C 57 Pesh).

(3) Sharaf Din v. Qazi Abdul Jalil (1986 S C M R 1368).

(4) Bashir Ahmad v. M.B.R. etc. 1987 C L C 1862.

(5) Masood Ahmad v. M.B.R. etc. (1982 C L C 357).

(6) Ghulam Hussain v. Ghulam Muhammad (1976 S C M R 75).

(7) Rehmat Ali v. M.B.R. etc. (1974 S C M R 171).

7. In reply to the arguments of the learned counsel for the respondent No.4 as noted above it has been pointed out by the learned counsel for the petitioner that the judgments cited by the learned counsel for respondent No.4 in support of his arguments are not applicable to the facts and circumstances of this case and that they are also distinguishable. He submitted that in none of these cases the question of appointment of son of deceased Lambardar was involved as compared to others and some of these cases relate to first appointment and not appointment of a successor to deceased Lambardar. Learned counsel for the petitioner further argued that if the appointment of a successor under rule 19 (2) is also held to be discretionary with the revenue authorities as is in the case of first appointment under rule 17 thereof, then such an interpretation would lead to the impermissible conclusion that rule 19 was redundant. He has further argued that pendency of a suit was not a bar against maintaining the writ petition. He relied upon judgment reported as "C L C 1980 page 1980" as such the non‑mentioning of the said fact in the writ petition according to the learned counsel was neither deliberate nor mala fide but on account of bona fide omission.

8. Before adverting to the argument advanced on behalf of the learned counsel for the parties it will be useful to reproduce rule 19 of West Pakistan Land Revenue Rules, 1968 in order to appreciate the said arguments:‑

"19. Matters to be considered in appointment of successor.‑‑ In an estate or sub‑division thereof, owned chiefly or altogether by Government, a successor to the office of headman shall be selected, with due regard to all the considerations, other than hereditary claims stated in Rule 17:

Provided that in such an estate or subdivision thereof, notified for the purpose by the Board of Revenue, the selection shall, as far as possible, be made in the manner prescribed by sub‑rule (2) if a suitable heir is forthcoming. (2) In other estates, the nearest eligible heir, according to the rules of primogeniture shall be appointed unless some special custom of succession to the office be distinctly proved but subject, in every case, to the following provision,‑

(a) The claim of collateral of the last incumbent to succeed shall not be admitted solely on the ground of inheritance, unless the claimant is a descendant, in the male line, of the paternal great grandfather of the last incumbent.

Where a headman has been dismissed in accordance with the provision of Rule 18 the Collector may refuse to appoint any of his heirs‑,

(i) if the circumstances of the offence, dereliction of duty or disqualification for which the headman was dismissed, make it probable that he would be unsuitable as a headman;

(ii) if there is reason to believe that he has connived at the offence or dereliction of duty for which the headman has been dismissed;

(iii) if any disqualification for which the headman has been dismissed, attached to him;

(iv) if he may reasonable be supposed to be under the influence of the dismissed headman or his family to an undesirable extent. Explanation. If a dismissed headman's heir is considered fit to succeed, regard shall be head to the property which he would inherit.

(c) The Collector may also refuse to appoint a person claiming as an heir, on any ground which would necessitate or justify the dismissal of that person from the office of the headman.

(d) A female is not ordinary eligible for appointment. to the office of a headman but may be appointed, when she is the sole owner of the estate for which the appointment has to be made, or for special reasons.

(3) Failing the appointment of an heir, a successor to the office shall be appointed in the manner, and with regard to the considerations, described in Rule 17. The short question is as to the comparative merits of the petitioner and respondent No.4 for the purpose of appointment as Lambardar The relevant provisions of law governing subject are contained in rule 19 read with rule 17 of West Pakistan Land Revenue Rules, 1968. Rule 17 deals with first appointment of Lambardar in an estate and rule 19 with appointment of a successor Lambardar. The case in' hand relates to an appointment in a vacancy occasioned owing to the death of Noor Muhammad Lambardar. As such the case is directly covered by rule 19 ibid. On a true construction of the provisions embodied in rule 19 the relationship of a candidate with the deceased Lambardar is to be treated as of over‑riding importance for determining entitlement for appointment unless such entitlement is vitiated by circumstances given in rule 19 (1). Since in the instant case the petitioner is the son of deceased Lambardar and none of the said vitiating circumstances applies, the over‑riding rule of claim as heir according to rule of primogeniture will prevail. Consequently the petitioner will be treated as having superior entitlement as compared with respondent No.4 who has no relationship with the deceased Lambardar.

9. The petitioner has been ignored by the learned, Member, Board of Revenue on the ground that he is a minor. In the first place it will be observed that the minority is not mentioned in rule 19 (2) as a vitiating consideration adversely affecting the entitlement of an heir for the appointment as Lambardar. Secondly rule, 26 and 28 of the said rules provide for appointment of a Sarbarah where Lambardar is minor. These provisions bear strongly on the conclusion that the petitioner could not be ignored merely on the basis of minority.

10. A contention has been raised on behalf of respondent No.4 to the effect that the appointment of a Lambardar is essentially an administrative matter lying within the discretion of the revenue authorities and as such the same does not fall within the scope of writ jurisdiction. It may be observed that it stands amply settled by now that power of judicial review is available in respect of administrative matter also particularly when they involve interpretation and application of law. The case in hand involves the question of true interpretation and correct application of statutory rules and writ jurisdiction will be available. This view finds strong support from the judgment reported as "P L D 1987 SC 447" laying down that where law has not been correctly and properly observed by a tribunal, it is proper case for interference by High Court in exercise of its constitutional jurisdiction. The discretion exerciseable within the framework of statutory rules in the matter of appointment of al Lambardar does not operate in bar to constitutional jurisdiction.

11. Again it has been contended on behalf of the respondent that there is not vested right in the appointment of a Lambardar. But law does not insist upon the existence of juristic right in order to enable writ jurisdiction to be invoked vide "P L D 1979 SC 223".

12. The question of prior institution of a suit and non‑mentioning its pendency in the writ petition in my view is not fatal to the maintainability of writ petition in the circumstances of this case especially when the petitioner is a minor and it was filed on his behalf by the next friend. It does not necessarily import mala fide on the part of next friend. Even otherwise the obejection regarding the petitioner coming to the court allegedly with unclean hands, affects only the question of discretion to grant relief and not of jurisdiction. I do not feel inclined to exercise my discretion for refusing to take cognizance of writ petition.

In view of the foregoing discussion I hold that the petitioner has a superior entitlement for appointment as Lambardar. Accordingly I accept the writ petition and declare, the impugned order dated 7‑5‑1986 passed by the Member, Board of Revenue to be without lawful authority and of no legal effect which is hereby quashed and that of the Commissioner dated 3‑11‑1985 is restored, which confirms; to the provisions of rule 19 ibid. There will, however, be no order as to costs.

A. A./N‑76/L Petition accepted.